Commonwealth ex rel. Staino v. Cavell

228 A.2d 647, 425 Pa. 365, 1967 Pa. LEXIS 688

• Court: Supreme Court of Pennsylvania
• Decided: April 24, 1967
• Docket: Appeal, No. 81
• Status: Published

Opinions

Opinion by

Mr. Justice Jones,

On the evening of August 7, 1959, the home of one John B. Rich in Pottsville, SchuylMll County, was burglarized and both cash and jewelry were stolen.

On Sunday, April 3, 1960, at approximately 1:00 a.m., Ralph Staino, Jr., was taken into custody in Philadelphia by State and Philadelphia police officers. Staino was placed in an automobile, handcuffed to a police officer and taken to the State Police Barracks at Reading, Berks County. At approximately 4:00 a.m. on the same date, while Staino was in the Reading State Police Barracks with five police officers present, Captain Ferguson of the Philadelphia Police Department advised him: “that [he] did not have to make a statement but if [he] did, anything that [he] said would be used against [him] at [his] trial.”¹ Captain Ferguson then read to Staino a statement of one Robert Poulson which implicated Staino in the Rich burglary.² Throughout the reading of that statement, Staino time and again stated “I have nothing to say”.

Staino was then taken to the Pottsville Court House where he was fingerprinted and photographed between 5:00-6:00 a.m. on the same date. Several hours later, Staino, without counsel and without being advised of his right to counsel, was given a preliminary hearing at which he stated that “he had nothing to say”. Staino was then lodged in Schuylkill County jail in Pottsville. At approximately 10:00 p.m. that same date, Staino was taken to the warden’s office in the jail where Captain Ferguson again read to him a statement of Poulson which implicated Staino in the Rich burglary. While that statement was being read and at its conclusion, Staino either stated “I have nothing to say” or he remained mute.

Staino was tried before a court and jury in the Court of Quarter Sessions of Schuylkill County, convicted of larceny and burglary and sentenced to a term of 4 to 9 years. That judgment of sentence was affirmed by the Superior Court (Commonwealth v. Staino, 204 Pa. Superior Ct. 319, 204 A. 2d 664 (1964)), and this Court refused allocatur.

On June 8, 1965, Staino filed a petition for a writ of habeas corpus in the Court of Common Pleas of Schuylkill County and that court, after hearing, dismissed Staino’s petition. The order of the Court of Common Pleas of Schuylkill County was affirmed by the Superior Court, by an equally divided court (Commonwealth ex rel. Staino v. Cavell, 207 Pa. Superior Ct. 274, 217 A. 2d 824 (1966)), and this Court granted allocatur.

At Staino’s trial, the statement of Poulson previously read to Staino in Reading and in Pottsville and proof of Staino’s conduct consisting of his statements “I have nothing to say” or his silence when confronted with Poulson’s statement were admitted into evidence.³ Poulson’s statement was admitted not upon the ground that it was credible or freely and voluntarily made by Poulson, but only because of that which Staino said or did upon his confrontation by the police with such statement. The theory of the Commonwealth was that Staino, by his conduct, had tacitly admitted the truth of Poulson’s statement and the trial court in admitting evidence of such conduct did so in reliance upon Commonwealth v. Vallone, 347 Pa. 419, 32 A. 2d 889 (1943).

Staino was tried in May 1961. At that time, the doctrine of tacit admissions was judicially accepted in our Commonwealth. As this Court recently stated in Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 85, 223 A. 2d 296 (1966) : “Pennsylvania has long adhered to the rule of evidence that when a statement made within the hearing and in the presence of a person (except in judicial proceedings) is incriminating in character and naturally calls for a denial, but is not challenged by the accused despite full opportunity and liberty to speak, the statement and the fact of his failure to deny are proper evidence of an implied admission of the truth of the accusatory statement. [Citing authorities].” See also: Commonwealth v. Dravecz, 424 Pa. 582, 227 A. 2d 904 (1967). Such was the state of the law in Pennsylvania when Staino was tried. Five years later, the U. S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), “. . . emphasizing the protection afforded a person accused of crime against self-incrimination by the Fifth Amendment to the United States Constitution, definitely ruled that such evidence [tacit admissions] is not constitutionally permissible against an accused in state court criminal trials. Therefore, previous decisions of this Court to the contrary notwithstanding, it is now the law that the prosecution may not use, at trial, evidence that an accused stood mute or failed to deny incriminating accusations, or statements made in his presence. In short, the accused may not now be penalized for exercising his constitutional right to remain silent under such circumstances”: Shadd, supra (p. 86), interpreting Miranda.

Very recently, we have been confronted with the determination whether the ruling proscribing the use of “tacit admissions” was to be applied retroactively. See: Commonwealth v. Dravecz, 424 Pa. 582, 227 A. 2d 904 (1967). In Dravecz, Mr. Justice Eagen in a concurring opinion joined in by a majority of this Court, stated: “Our ruling in Shadd was directly responsive to a statement by the United States Supreme Court in [Miranda] .... However, since Shadd involved a collateral attack on a judgment finalized several years previously, we held that the new ruling declaring the evidentiary use of ‘tacit admissions’ impermissible did not apply or affect the validity of the judgment therein.

“The instant trial occurred in September, 1964, and the judgment comes before us for review on direct appeal. Hence, the retroactive application of our new ruling as to the use of evidence of ‘tacit admissions’ at trial presents a problem not present in Shadd.

“As noted before, our ruling in Shadd proscribing the use of such evidence was prompted by Miranda v. Arizona, supra. Upon further consideration of the problem, it is now my conclusion that the bar to the use of such evidence flowed from the mandate of Malloy v. Hogan, 378 U.S. 1 (1964). Since Malloy was decided on June 15, 1964, the question therefore arises: Must all trials subsequent thereto wherein such evidence was admitted be set aside? I conclude not. It is my view that the date the judgment was finalized is controlling, rather than the date of trial, and if the judgment was finalized before the pronouncement in Miranda v. Arizona on June 13, 1966, then the use of such evidence at trial does not necessarily invalidate the judgment.

“The above conclusion is based on an analogy of the kindred decisions of Griffin v. California, 380 U.S. 609 (1965) [rehearing denied, 381 U.S. 957 (1965)], and Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966) [rehearing denied, 383 U.S. 931 (1966)]. In Griffin, the United States Supreme Court held for the first time that adverse judicial or prosecutorial comment to the jury on an accused’s silence during a state trial violates the proscription against self-incrimination included in the Fifth Amendment to the federal Constitution. While this ruling was necessarily premised upon the prior ruling in Malloy v. Hogan, supra, nevertheless, in Tehan v. United States ex rel. Shott, supra, the court ruled that Griffin did not apply to all cases tried subsequent to Malloy but only to those not ‘finalized’, in the sense of Linkletter v. Walker, 381 U.S. 618 (1965), as of the date the decision in Griffin was announced.

“The relationship between Malloy and Miranda in the realm of ‘tacit admissions’ is closely analogous to the relationship between Malloy and Griffin, in the realm of adverse comment on an accused’s silence at trial. Just as the decisional seed which later bloomed into Griffin is impliedly imbedded in Malloy, so too is Miranda’s clear proscription of ‘tacit admission’ evidence genealogically connected to Malloy. However, while the proscription against adverse comment on the accused’s silence at trial was implicitly promulgated by Malloy, it was not explicated therein. This was left to Griffin. Likewise, while the proscription against evidentiary use of ‘tacit admissions’ was implicit in Malloy, it was Miranda that first spelled it out. Hence, it logically follows from Tehan that the ruling banning the evidentiary use of ‘tacit admissions’, first explicated in Miranda, need only be applied to those cases wherein the judgment was not finalized as of the date Miranda was announced.”

The judgment in the case at bar had become final long prior to the Mir mida ruling. Under the rationale of Dravecz, Miranda would not apply and affect the use of the “tacit admission” rule by the Commonwealth during the trial of this case. Accordingly, we find no merit in this contention of Staino.

Staino next contends that, applying the law as it existed prior to June 22, 1964 (the date upon which Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964) was decided) and June 13, 1966 (the date on which Miranda, supra, was decided), the denial to Staino of the right to the assistance of counsel, under the instant circumstances, violated his constitutional rights and the lack of such counsel effectively denied him a fair trial. It is Staino’s theory that the police officers, by trickery, purposely created a situation wherein Staino’s conduct could be interpreted as a tacit acquiescence, that such apparent acquiescence resulted from a form of police coercion rather than from Staino’s free will and volition and that had Staino at that time had the assistance of counsel such apparent tacit acquiescence would have been avoided.

In effect, Staino now seeks to bring himself within the exclusionary language of the United States Supreme Court in Johnson v. New Jersey, 384 U.S. 719, “At the same time, our case law on coerced confessions is available for persons whose trials have already been completed, providing of course that the procedural prerequisites for direct or collateral attack are met. See: Fay v. Noia, 372 U.S. 391 [83 S. Ct. 822] (1963). Prisoners may invoke a substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingly meticulous through the years. See: Reck v. Pate, 367 U.S. 433 [81 S. Ct. 1541] (1961). That test now takes specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance. See: Haynes v. Washington, 373 U.S. 503 [83 S. Ct. 1336] (1963); Spano v. New York, 360 U.S. 315 [79 S. Ct. 1202] (1959). Prisoners are also entitled to present evidence anew on this aspect of the voluntariness of their confessions if a full and fair hearing has not already been afforded them. See: Townsend v. Sain, 372 U.S. 293 [83 S. Ct. 745] (1963). Thus, while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim.” Johnson v. New Jersey, supra, 384 U.S. 719, 730, 86 S. Ct. 1772, (1966).

In order to place in proper prospective Staino’s argument, we must first look to the record: (1) admittedly, prior to the conduct of Staino which the Commonwealth relied upon as a tacit admission, Staino had been warned of his right to remain silent and that anything he said would be used against him; (2) Staino was not advised of his right to the assistance of counsel nor did he request such assistance (See: Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761 (1966); Commonwealth v. Jefferson, 423 Pa. 541, 226 A. 2d 765 (1967)); (3) after having warned Staino of his right to remain silent, the police officers confronted him with Poulson’s statement and then used his conduct after such confrontation as evidence of a tacit admission; (4) Poulson did not testify at Staino’s trial and, therefore, Staino had no opportunity to inquire into the truth of Poulson’s implicating statement. Basic in Staino’s contention is that we must equate a tacit admission with a confession⁴ and extend the rule of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964) to include tacit admissions.

In Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964) and in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), the U. S. Supreme Court granted to every suspect in a criminal proceeding the right to assistance of counsel during a police pretrial or “in-custody” interrogation. However, under the ruling in Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966), neither Escobedo nor Miranda apply to the case at bar because the trial antedated both decisions.

The law as to the admissibility of confessions obtained from an accused when he was without the benefit of the assistance of counsel prior to Escobedo and Miranda is set forth in Commonwealth ex rel. Mullenaux v. Myers, 421 Pa. 61, 217 A. 2d 730 (1966) : “Accordingly, appellant had no absolute right to the assistance of counsel during the pretrial stage of the proceedings. Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287 (1958); Cicenia v. LaGay, 357 U.S. 504, 78 S. Ct. 1297 (1958). The absence of counsel at appellant’s interrogation following his arrest may not be deemed violative of his Fourteenth Amendment rights unless he was ‘so prejudiced thereby as to infect his subsequent trial with an absence of “that fundamental fairness essential to the very concept of justice” ’ . . . .” (Emphasis supplied). In Crooker v. California, 357 U.S. 433, 439, 78 S. Ct. 1287, 1292 (1958), the U. S. Supreme Court said: “Under these principles, state refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the merits . . . but also if he is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect his subsequent trial with an absence of that fundamental fairness essential to the very concept of justice’.” (Emphasis supplied), gee also: Davis v. North Carolina, supra; Commonwealth v. Negri, 419 Pa. 117, 123, 124, 213 A. 2d 670 (1965).

Our scrutiny of this record reveals no prejudice to gtaino due to the absence of counsel on the occasions when he was confronted by Poulson’s statement. To find such prejudice an inference would have to be drawn from an inference: first, an inference would have to be drawn that the police officers in reading Poulson’s statement had engaged in “trickery”, an inference lacking any evidentiary support; second, an inference that, had gtaino had counsel when he was confronted with Poulson’s statement, counsel would have recognized the police tactics as “trickery” and would have advised gtaino to remain silent or to say nothing, which, incidentally, is just what gtaino did. The “prejudice” envisioned in Crooker and Mullenaux, supra, cannot be founded on such legal legerdemain.

It is next urged that gtaino was deprived of the right to confront and examine Poulson as to the truth of his implicating statement, a right constitutionally guaranteed. We find no relevancy between the right of confrontation and the tacit admission rule. The probative force of the accusatory or implicating statement arises not from the credibility of the maker of the statement but from the silence of the accused in response to the statement. The question of the credibility of the maker of the statement is not in issue under the tacit admission rule and the cross-examination of the maker of such statement could serve no valid purpose. When the trial court admitted the introduction into evidence of Poulson’s statement it did so not because of the credibility of that statement but because of the silence of gtaino when confronted with such statement. See: Commonwealth v. Brooks, 355 Pa. 551, 554, 50 A. 2d 325 (1947).

Staino next contends that, under Jackson v. Denno, supra, the tacit admission of Staino being the equivalent of a confession, a separate hearing should have been held to determine the voluntariness of his tacit admission. Accepting for the purpose of this argument the equation of a tacit admission and a confession, it must be noted that Staino does not seek a remand to the court below to hold a separate hearing to determine the voluntariness of his admission.⁵ On the contrary, he wants the Court now to hold that “the facts are clear that the tacit admission obtained from [Staino] was not voluntarily given but obtained through the planned use of trickery and deception” and, therefore, the tacit admission should have been excluded as evidence.

The coercion which Staino claims did not arise from any beatings, threats or physical abuse by the police officers but from an “undeviating intent of the officers to extract a confession” from Staino and from an illegal detention. As to Staino’s claim of an illegal detention, the record shows unequivocally that Staino was promptly and expeditiously arraigned and given a preliminary hearing and that he was not subjected to any such illegal detention as condemned in Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356 (1957). Neither the law nor the record facts support Staino’s claim of coercion on any other grounds. Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202 (1959); Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735 (1961); Bram v. United States, 168 U.S. 532, 18 S. Ct. 183 (1897); Flaherty v. United States, 355 F. 2d 924 (1966), upon which Staino relies are factually inapposite. A careful examination of this record fails to disclose evidence of any coercion such as would impugn, or even cast doubt upon, the voluntariness of the tacit admission of Staino.

Lastly, urging that we adopt the statement in Johnson v. New Jersey, supra (p. 733), that “States are still entirely free to effectuate under their own law stricter standards [of retroactivity] than those [enunciated in Johnson] and to apply those standards in a broader range of cases than is required by this decision,” Staino requests us to adhere to our ruling in Commonwealth v. Negri, 419 Pa. 117, 128, 129, 213 A. 2d 670 (1965) that Escobedo should apply to cases wherein the judgment of sentence had not become final prior to June 22, 1964, the date of the ruling in Escobedo.6 This request was considered and rejected in Commonwealth ex rel. Wilkes v. Maroney, 423 Pa. 113, 116, 222 A. 2d 856 (1966) and Commonwealth v. Senk, 423 Pa. 129, 132, 133, 223 A. 2d 97 (1966) wherein this Court reconsidered its ruling in Negri and accepted the ruling laid down in Johnson, supra, as controlling.

We fail to find upon this record and under the law any reason to justify the issuance of a writ of habeas corpus.

Order affirmed.

Mr. Chief Justice Bell concurs in the result.

1 That such warning was given is undisputed.

2 This statement was repudiated by Poulson at Poulson’s trial Which took place several months prior to Staino’s trial.

3 Staino’s counsel objected to tbe introduction into evidence of Poulson’s statement and to proof of Staino’s conduct when confronted with such statement. Such objection did not specifically object to the admission of such evidence on constitutional grounds.

4 “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. [Citing authorities] . . . .” Miranda, supra, p. 468, n.37.

5 In Ms brief, Staino’s counsel states “such a hearing would afford little meaning since the facts surrounding the manner in which the tacit admission was obtained are undisputed and fully-set forth [in the brief].” (Supplemental Brief p. 12).

6 The judgment in Staino did not become final until February 8, 1965. As to the meaning of “final”, see: Linkletter v. Walker, 381 U.S. 618, 622, 85 S. Ct. 1731 (1965).